Montgomery County judge sued over courtroom prayer policy

Judge Wayne L. Mack, Justice of the Peace, speaks during the "Standing As One Healing After New Zealand" program, a prayer and remarks vigil with community and local faith leaders at The Woodlands Muslim Community at Masjid Al-Ansaar Mosque Friday, March, 22, 2019 in The Woodlands, TX.

Photo: Michael Wyke, Houston Chronicle / Contributor

A national organization that advocates for separation of church and state on Wednesday refiled an unusual federal lawsuit against a sitting judge who invites chaplains to hold a prayer service in the courtroom before calling his docket for the day.

The Freedom From Religion Foundation is suing Justice of the Peace Wayne L. Mack, who serves in rapidly developing Montgomery County north of Houston as well as the state of Texas for allowing a practice the organization says violates the constitutional protections. The federal case originally sought relief from the judge and the county where he serves.

Sam Grover, an attorney from the nonprofit foundation in Madison, Wisc., said Mack’s courtroom prayer service unfairly pressures parties and lawyers to join a volunteer chaplain judge in prayer, while the judge watches to see what they do. The fact that he announces people can leave the room if they’re “offended” by the ritual only adds to the pressure to participate, the lawyer said.

“When Judge Mack is acting on behalf of the state of Texas he should not be dictating to the public how and when to pray,” Grover said. “Our goal is to ensure that every court in the state of Texas is equally accessible to everyone regardless of their personal religious or nonreligious beliefs.”

The foundation wants a court to find the state of Texas and Mack liable for violating lawyers’ First Amendment rights by coercing them to join the service.

Mack said on Wednesday that he has held the prayer service throughout the five years he has been in office and for four of those years he’d been battling with complaints from the national foundation. He has “every mosque, temple and synagogue” represented among more than 60 chaplains, who are also called to respond when the judge is overseeing matters involving recent deaths in the county.

Mack was unaware the new lawsuit had been filed, he said, adding, “I was hoping this issue was resolved after the judge ruled in our favor.”

Hiram Sasser, general counsel to First Liberty, which is representing Mack, said "The FFRF continues to harass Judge Mack despite repeatedly losing in court. It's ridiculous that a group from Wisconsin would continue to fight invocations similar to those the Supreme Court of the United States has twice ruled are constitutional."

In the previous case, Texas Attorney General Ken Paxton issued an opinion upholding Mack’s pre-court prayers. He stated that the judge was following legal precedent and complying with the Constitution.

A news release from Paxton’s office at the time of the opinion stated, “The Freedom from Religion Foundation’s quest to expunge any vestige of religion from public life flies in the face of the Supreme Court’s holdings.”

A spokesperson for the AG’s office did not respond to a call about the case filed Wednesday afternoon.

U.S. District Judge Ewing Werlein in Houston on Sept. 27 dismissed the original suit on the grounds that the county was not an appropriate party in the case, since Mack is employed by the state judiciary.

According to the new lawsuit, Montgomery County attorneys whose names are concealed in the suit feel pressured to bow their heads in prayer and not leave the room, for fear that refusing to do so, or even praying reluctantly could impact the outcome of their clients’ cases.

The suit says the judge reportedly states before the prayer, “If any of you are offended by that you can leave into the hallway and your case will not be affected.”

A non-religious lawyer using the pseudonym John Roe is bringing the lawsuit along with the foundation. This attorney appeared before the judge 20 times to represent clients in 45 matters, and encountered Mack’s courtroom prayer activity each of those times. Along with Roe, other lawyers named in the complaint state that they don’t feel comfortable declining to join the prayer lest it affect the judge’s rulings in their cases.

No other JPs hold prayer sessions during business hours, according to the suit. Mack’s use of prayer meetings and the chaplains he invites to lead them previously were upheld in a challenge before the State Commission on Judicial Conduct , which rarely sanctions judges.

At a 2014, Faith & Freedom Prayer Breakfast, which doubled as a fundraising event, Mack was recorded on video pledging his commitment to impartiality but noting that “there is no reason as an elected official that I have to be ashamed to declare to this crowd and anybody listening that as the Justice of the Peace I will bring the Prince of Peace to work with me every day,” according to the suit.

Mack started the chaplaincy program in 2014 and has asked religious leaders of various faiths to give the invocation.

Following the hearing before the judicial commission, Mack has added a sign outside the courtroom to clarify that people who do not want to participate in the Pledge of Allegiance or the prayer do not have to leave the room, and that the justice now keeps his eyes closed and head down during the prayer, the judge’s counsel previously said. He said Wednesday that he has additional signage in the room to alert people to this policy.

The Supreme Court has addressed the question of prayers by government entities twice, upholding the prayer practices in both cases. The first involved a legislative body in Nebraska and the second a town council in Greece, N.Y..

Grover, who represents attorney Roe in Montgomery County, said previously that he planned to argue in Houston that the 2014 Greece ruling does not apply to courtroom prayer.

Gabrielle Banks covers federal court for the Houston Chronicle. She has been a criminal justice and legal affairs reporter for nearly two decades, including staff work at the Pittsburgh Post-Gazette and The Los Angeles Times, and freelance work for The New York Times, The Mercury News, Newsday and The Miami Herald. She has a graduate degree in journalism from Columbia University. Before her years as a reporter, she worked as a teacher, social worker and organizer.